R. v. Sammy Date:, 2015 BCPC 400

Citation: R. v. Sammy Date: 20151221 2015 BCPC 0400 File No: 59158-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAGAR KRISHNA SAMMY RULING ON

SECTION 516 ADJOURNMENT APPLICATION OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L. Dumbrell Counsel for the Defendant: R. Bal (as Agent for M. Stern) Place of Hearing: North Vancouver , B.C. Date of Hearing: December 21, 2015 Date of Judgment: December 21, 2015

[ 1 ] THE COURT: I have before me an application for an order under s. 516(1) of the Criminal Code of Canada made by Crown counsel in this matter seeking to extend for a period of three clear days a judicial interim release proceeding with respect to the accused before the court, Sagar Krishna Sammy. [ 2 ] Mr. Sammy was arrested on December 16th, 2015, in a local fast-food outlet parking lot and charged with various offences, ultimately now some eight in number. Three of the offences relate to his conduct at the time of the arrest.

He is said allegedly to have assaulted one of the police officers who was trying to arrest him. Five of the charges relate to his possessing various illicit substances scheduled under the Controlled Drugs and Substances Act , on four of the counts for purposes of trafficking, the first count relating simply to possession under s. 5(1) of the Controlled Drugs and Substances Act . [ 3 ] The Crown has explained that the drugs that they allege the accused was found to possess were substantially located in a hotel room locally here on the North Shore.

They also allege, based on observations made by the police at the time of the arrest when the accused was seen that in the process of resisting arrest and fleeing from the police officer who was attempting to arrest him, he was seen drinking from a water bottle and seemingly putting something that may have been in a container into his mouth at the same time, no doubt for purposes of swallowing the same.

The Crown thesis in this case is that at the time the arrest was being resisted by the fleeing accused that he likely consumed a quantity of drugs that he was attempting to sell in, I suppose, what is often referred to as a "dial-a- dope" operation from the motor vehicle in which he was driving. [ 4 ] One thing that Crown is allowed to do on a bail hearing is lead evidence as to the strength of its case. Section 518(1)(c)(iv) makes it clear that, on a bail application, Crown can show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused.

In lawyer and judicial language, the so-called "strength of the Crown case" is always an important consideration for any judge who conducts a bail hearing. [ 5 ] Having regard to the Crown thesis originating from the investigating police officers in this matter, the belief is that the accused may very well have ingested drugs and steps have been taken since his arrest to ensure that when he voids either solids or liquids from his body that they are not flushed down a toilet, but rather are preserved for review and analysis.

Crown's suggestion in the adjournment application is that certain of the drugs believed to have been ingested by the accused may have been wrapped, and I can but say if the Crown allegations are true, hopefully for his sake that that is so. [ 6 ] The defence counsel points out, and Crown has certainly admitted, that there has already been one adjournment granted by my sister Judge Challenger on Friday, December the 18th, in this matter where, on a similar application, she adjourned the matter to apparently Tuesday of this week.

This application has been brought on earlier by Crown in the belief that the adjournment made by my sister judge may have been for one more day than was permitted by the jurisdiction given to her under s. 516(1) and on the further understanding that, if a further adjournment was to be sought, the order had to be made within the three-day period of time.

There is certainly authority referred to in Martin's Annotated Criminal Code to that effect. [ 7 ] Defence suggests that the Crown is only entitled to be given a reasonable opportunity to show cause under s. 515(1) of the Criminal Code of Canada and, essentially, his argument is that the Crown has had ample opportunity to show cause if it wishes to do so and, therefore, no adjournment should be granted as sought and this matter should proceed as quickly as possible to a show cause hearing including, as I would have understand Mr. Bal's position, one that would be conducted today.

I note that it is now 4:10 p.m. [ 8 ] In my view, the request made by Crown is entirely reasonable having regard to the very serious facts alleged in this case. I do not read s. 515(1) to be any form of direction that a Crown prosecutor is entitled to one only adjournment under s. 516(1) of the Criminal Code of Canada . Certainly on the facts of this case, if the Parliament of Canada had intended that to be the scheme of this legislation, the Parliament of Canada might have very clearly spelled that out in language that found its way into s. 516(1) of the Criminal Code of Canada.

There is no such language. [ 9 ] The whole thrust of the application being brought by Crown counsel in this matter is that it has not yet had a reasonable opportunity to show cause because some important evidence that it expects may appear in the substances that are voided from the accused's body that the police are watching for may appear very shortly, having regard to the fact that substances which were believed to have been ingested by this accused were believed to have been swallowed as early as December the 16th in the early hours of the evening.

In the event that such substances were voided and were drugs, it would certainly add to the strength of the Crown case. [ 10 ] I do find the case of R. v. Shaw , [1997] O.J. No. 551 a judgment of Mr. Justice Smith in the Ontario Court of Justice to be a persuasive authority in this case.

It generally stands for the proposition that conducting what is crudely said to be essentially a "bed-pan vigil" in this case does not offend Charter rights relating to the detention of the accused. [ 11 ] On the unusual circumstances of this case and construing the language in s. 515(1) as I do and s. 516(1) being devoid of language limiting the number of applications that can reasonably be made by Crown seeking an adjournment, I grant the adjournment with terms that will include that this accused is to be held at the North Vancouver detachment of the Royal Canadian Mounted Police across from the Lions Gate Hospital. [ 12 ] It is extremely important to me that he be held there and nowhere else because I do have concern that, sadly, he does not share that in the event that he did ingest drugs that they might be harmful to his health and it would be very important that he would be as close as possible to a modern hospital so that in the event that he needed an emergency review or treatment, it would be readily available. [ 13 ] There was, as well -- you had some other term.

What was the other term? [ 14 ] MS. DUMBRELL: No, Your Honour, just to advise, Your Honour, that certainly it is from the police's perspective, is they are also concerned -- echo the concerns of Your Honour. [ 15 ] THE COURT: Everybody is concerned --

[ 16 ] MS. DUMBRELL: They are -- they are -- yes. [ 17 ] THE COURT: -- except this accused, I think. [ 18 ] MS. DUMBRELL: I agree, that they -- the plan is to take him to Lions Gate today and hopefully have him seen by a doctor -- [ 19 ] THE COURT: Yes. [ 20 ] MS. DUMBRELL: -- and then returned to cells. [ 21 ] THE COURT: I -- [ 22 ] MS. DUMBRELL: But I do not know if that needs to be ordered, but -- [ 23 ] THE COURT: Can I include that as a term of the adjournment? I think that makes a -- [ 24 ] MS. DUMBRELL: Sure. [ 25 ] THE COURT: -- very sensible idea.

You know, the police have a duty that they owe to members of the public including accused individuals that they act reasonably to promote their health. [ 26 ] MS. DUMBRELL: Yes. [ 27 ] THE COURT: And I think it would be an excellent idea for this accused to have a private meeting again with a medical doctor to -- [ 28 ] MS. DUMBRELL: Yes. [ 29 ] THE COURT: -- perhaps get some further advice that he did not adhere to the first go-round. [ 30 ] MS. DUMBRELL: Your Honour, the only -- [ 31 ] THE COURT: I am minded, unless you tell me otherwise, and of course subject to what Mr.

Bal says, to make that a term of the adjournment. [ 32 ] MS. DUMBRELL: No, I have absolutely no difficulty with that. My only -- [ 33 ] THE COURT: Mr. Bal, do you have any objection to that? [ 34 ] MR. BAL: The only thing I can really say is I think the police would be -- I do not think it needs to be a term of the order, but besides that, I think the police do what they do as is necessary -- [ 35 ] THE COURT: Yes, all right, well -- [ 36 ] MR.

BAL: -- and no further submissions. [ 37 ] THE COURT: -- under the circumstances of this case, because I think it is a serious matter, a very serious matter, it is a term of the adjournment that this accused is to be taken from this building forthwith at the earliest possible moment by the Royal Canadian Mounted Police. It will not be the sheriff taking him over there. It will be the RCMP. [ 38 ] UNIDENTIFIED VOICE: No. [ 39 ] THE COURT: All right. [ 40 ] MS.

DUMBRELL: They are in the building now. [ 41 ] THE COURT: Okay, yes, by the RCMP to Lions Gate Hospital in order that the accused may be reviewed by an appropriate medical doctor thereat with respect to this matter. [ 42 ] Now, the adjournment, then, is three clear days. Have you looked at the Federal

Interpretation Act to know what "clear days" are under federal legislation? [DISCUSSION RE LENGTH OF ADJOURNMENT AND RETURN DATE] [ 43 ] THE COURT: Wednesday, December the 30th. Yes, it is the 30th, and your client then consents to remain in custody from today to that date, does he? [ 44 ] MR. BAL: Yes, he does, Your Honour and -- [ 45 ] THE COURT: All right. [ 46 ] MR. BAL: -- and at two o'clock, please. [ 47 ] THE COURT: Yes, all right, 2:00 p.m., and what will the purpose of that hearing be? Fix date? [ 48 ] MR. BAL: For judicial interim release.

[ 49 ] THE COURT: All right, judicial interim release. All right, thank you. [RULING ON

SECTION 516 ADJOURNMENT APPLICATION]